Open
Regionalism and Deeper Integration: The Implementation of ASEAN Investment
Area (AIA) and ASEAN Free Trade Area (AFTA)
Dr.
Lawan Thanadsillapakul
Part
23
No
reservation may be made with respect to any of the provisions of this
agreement. However, the agreement is stated to be without prejudice to
any existing or future bilateral or multilateral agreement entered into
by member countries or the national laws of each member country relating
to the protection and enforcement of intellectual property rights(144) . This provision weakens the agreement, and it seems to be inferior both
to national laws and international agreements concluded by ASEAN countries.
The agreement has no MFN provision, but ASEAN countries are in any case
bound by the MFN obligation in the TRIPs agreement.
A
Programme of Action was agreed for 1996-1998 to begin to implement the
ASEAN Framework Agreement on IP Co-operation, through ASEAN Working Group
on Intellectual Property Co-operation (AWGIPC) under the purview of SEOM.
Activities in the Programme of Action include studying the feasibility
of utilising the ASEANWEB for IP, setting up ASEAN electronic database
on patent, design, geographical indication and trademark, facilitation
of information exchange on the procedures, practices and administration
among ASEAN IP offices, networking of institutes offering IP training
course and exchange of personnel.
This
summary of the IP agreement reflects its legal weakness. The agreement
is a co-operation scheme, it is not per se a legal binding instrument
for implementation of ASEAN harmonised regulations on IP even though the
agreement aims to develop co-operation among ASEAN countries on IP laws.
In
fact, the agreement is only a statement of intention of the ASEAN countries
to co-operate on IP laws and enforcement and protection of IP rights.
The loose form of the agreement is typical of all ASEAN agreements. There
is no specific time-frame, nor any detailed provisions for implementing
the agreement.
The
second point is that the agreement has no priority, as it does not affect
either existing or future agreements of ASEAN member countries. Furthermore,
the agreement is subordinate to national law(145) . This shows the reluctance of ASEAN countries to regionalise this area
of laws.
The
third point is the lack of sufficient mechanisms and institutional arrangements.
The implementation of the agreement relies on temporarily set up forums,
a Group of experts and a Forum of representatives of the member countries,
and they report to the SEOM and the ASEAN Secretariat. There is no permanent
institution or mechanism to operate and implement the agreement officially.
No officials or specialists have been appointed to help facilitate the
process of harmonisation or mutual recognition of the ASEAN countries'
laws on IP, so it is unrealistic to expect the development of an ASEAN
system of such laws or of ASEAN standards and practices on IP.
The
fourth point is the lack of a dispute settlement mechanism. The agreement
just relies on amicable settlement and consultation between the member
countries for disputes arising from the differences in interpretation
and applications of the agreements.
Therefore,
ASEAN needs to elaborate more specific and detailed agreements with specified
time-frames and efficient mechanisms. ASEAN needs to further strengthen
its institutional and legal framework for implementing the objectives
of these new agreements. The most important issue is to cultivate political
will supporting regional integration. ASEAN should be more realistic than
rhetorical, as it has been over the past decades. The following section
will discuss patterns of regionalisation and consider the direction of
ASEAN integration.
The
Complementarity between ASEAN Regionalism, APEC Liberalisation, and Global
Liberalisation
ASEAN
regionalism is quite different from the conventional regionalism implemented
elsewhere. As stated earlier and also in various studies on this issue,
such as Pelkmans (1997: 199-243), ASEAN integration schemes are not about
integration among ASEAN members for forming a "closed or discriminatory
trading bloc", but rather a way for ASEAN countries to co-operate
to increase their international competitiveness and integration with the
world. In this sense, the ultimate objective of ASEAN regionalism is to
increase the region's competitive edge as a production base geared toward
the global market (ASEAN Secretariat, 1995: 1). On the other hand, ASEAN
integration is a means to create an enlarged regional market for attracting
inflows of trade and investment. This is because the economies of scale
generated by ASEAN integration have enhanced its attractiveness as an
investment location or a production platform for global markets as well
as the regional market. Economic integration in ASEAN is largely market
driven, so ASEAN does not focus solely on the region but is also globally
oriented. It is clear that AFTA, AIA, and AFAS are driven primarily by
the recognition by ASEAN of the necessity to continue to sharpen its international
competitiveness. Therefore, ASEAN states are integrating among themselves
in order to integrate with the world, and AFTA, AIA, as well as AFAS would
be a means for achieving this.
Thus,
it is not surprising that the rationale of ASEAN integration is not primarily
to pursue a rising share of intra-regional trade in its total trade, but
rather to develop the free flow of goods and mobilisation of investment
intra-ASEAN. In consequence, it facilitates a further degree of market
integration so that ASEAN would be increasingly attractive as an area
of trade and investment in the global economy. This is the meaning of
the "Open Regionalism" approach adopted by ASEAN. Pelkmans explains
the term as follows:
"Open
Regionalism means that regional economic intercourse is to be promoted
if and only if it is consistent with GATT/WTO and not to the detriment
of other economies" (Pelkmans, 1997: 226).
AFTA,
AIA and AFAS would be major instruments to facilitate the trade and production
linkage within the region and with the world through TNC networks located
regionally and globally. As discussed earlier in relation to each ASEAN
scheme, liberalisation is realised regionally and internationally through
liberal rules of establishment under AIA, and for commercial presence
(ASEAN service provider) under AFAS, as well as the ASEAN rule of origin
under AFTA that facilitates trade flows from outside into ASEAN. These
new ASEAN schemes clearly facilitate and balance ASEAN regional integration
and globalisation. Therefore, ASEAN integration is implemented consistently
and complementarily with the WTO rules and obligations as it encourages
free trade and liberalises investment at regional and international level.
Part
24
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(144)
Art. 6 of the ASEAN Framework Agreement on Intellectual Property Co-operation.
(145)
Art. 6 of the Agreement on IP co-operation. |